Everybody knows Banksy. Some people might never have heard of Banksy’s name, but they probably had already shared or liked one of his arts. I can go even further saying those people might not even know that art was a graffiti. Yes, a lot of people might have liked and shared Banksy’s arts thinking it was only a nice internet political drawing.

Do you remember seeing a beautiful drawing of a girl with a red heart-shaped balloon? You might have seen it on a tattoo, a lot of people have it. It is Banksy’s and it is a graffiti, not only a beautiful internet drawing.

You may think I’m about to say that Banksy is the artist behind We the People posters. No, he is not, but they might be related, though.

I didn’t remember who he was until just after the historic Women’s March here in Washington-DC, even though I knew him and his art for a long time. I just haven’t connected the dots.

I knew him from Banksy’s Exit through the gift shop documentary released back in 2010. Banksy’s movie is about himself, street art, activism and several other street artists (It’s a great movie about street art, you should watch it!!).

We the people was a crowdfunding campaign created by the Amplifier Foundation to print and distribute Shepard Fairey, Ernesto Yerena, and Jessica Sabogal’s images on a large scale for Trump’s Inauguration Day to “flood Washington, DC with NEW symbols of hope” against intolerance, fear, and hate. I didn’t go to the Inauguration, I went to Women’s March instead and it was filled with We the People posters everywhere.

“I think art can wake people up because when an image resonates emotionally we want to get to the bottom of it. And art really helps people feel things that then they talk about.” (Shepard Fairey).

Something is crystal clear here: graffiti, or street art, is not vandalism. You could say “pichação” (which is not the same as graffiti) is vandalism. However we could debate on it since its in a grey blurred area between a simple act of vandalism and a cry for freedom of speech and manifestation.

So, the bottom line is: graffiti might be the most democratic way of raising awareness about social and political issues through art.

Graffiti usually doesn’t ask for permission to express its freedom of speech, and, sometimes, it is used by street artists to questioning the oppressive establishment.

This is how deep the graffiti activism is as a Human Rights’ expression fighting for Human Rights.

Meanwhile, the recently elected São Paulo City mayor, João Dória, declared war on graffiti and painted grey, among other street arts, the largest graffiti wall in Latin America – like the world’s 3rd largest city doesn’t have more urgent issues to be addressed.

He’s done the same as Kassab did (São Paulo City mayor before Fernando Haddad’s mayorship). The Grey City, another great documentary, shows Kassab’s lost war on graffiti. You should watch it also!

Thus, in less than a week Dória already lost this war and was forced to change his mind. São Paulo City Hall will pay street artists to repaint the city. Dória spent tax payers’ money to paint a colorful city grey, and now is going to spend more money to paint a grey city colorful again.

History indeed repeats itself.

It seems there is an in between the lines hidden message here: color means diversity, plurality, tolerance, empathy, more Human Rights.

Curtir isso:

Everyone has their own moral standards, which might be compatible and incompatible to several other people. Different moral compass might enter into conflict, and they certainly will. What should we do about it?

If everyone has its own personal moral standards, which one is the right among over 7 billion? And why some people do want to impose their moral standards on others?

Shocking events like shootings, bombings, terrorism, massacres are so common and widespread they don’t stun us anymore. They became only numbers, not terrifying facts that shouldn’t even exist.

Brazil had a shooting incident in Campinas-SP, where a man killed his ex-wife, child and other 10 people, 9 of them women, before killing himself in a New Year’s Party on January 1st, 2017.

The shooter said terrible nonsenses in his suicidal note. Things like: “inmates have 3 meals a day, sunbath, income, don’t wake up early for work, Human Rights representatives kissing their asses, while I spend 5 months of my income in taxes to fund it”, said that feminists are sluts and he hates them, that Brazilian Law “Maria da Penha” against Domestic Violence is the Law Slut of Penha and kept repeating things filled with hate and anger towards: criminals (he most likely agree with the phrase “good criminal is a dead criminal” like other 40% of Brazilians declared in a poll), politicians, and mostly against women (he said he would kill as much women as possible at the party shooting, a crystal clear feminicide).

The Orlando Pulse Nightclub, in June 2016, had almost 50 people killed. All signs points to a massive hate crime and violence against LGBT people, and since the killer died we’ll never know his true motives for sure.

This reactionary and conservative moral compass based on fear, anger and hate fuels an engine that leads to a vicious spiral of violence against an “enemy”, whatever it might be – communists? muslims? african-descendants? women? LGBTs? terrorists? refugees? …

Once inside this spiral driven by a sick moral compass the individual can barely withstand his own existence in some cases, so he ends up killing himself after his killing spree. I guess this ends on the individual not fitting in his own moral standards.

Here is a wise quote from Master Yoda:

“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”

According to Oxford Dictionary, the 2016’s word of the year was “post-truth“:

“relating to or denoting circumstances in which objective facts are less influential in shaping public opinion thanappeals to emotion and personal belief.”

A narrative appealing to emotions like resentment, fear, hate and anger can drive some people to all those extreme situations. This same problem can be seen in an even broader spectrum, of groups or large-scale democratic political decisions based on narratives that encourage such emotions.

For example, 2017 did not complete its first week yet and Brazil has already had two major prison rebellions resulting in, at least, 80 inmates dead, 50 in Manaus-AM, and 30 more in Boa Vista-RR. It’s worth saying that over 40% of the Brazilian prison population is made of inmates that are still in pretrial detention, they were not convicted yet – and Alexandre de Moraes, Brazilian Ministry of Justice wants to eradicate marijuana from South America. War on drugs worked like a charm in USA, just ask its more than 2 million inmates!

Beyond all this terrible news, it is astonishing to see some reactions after those sad incidents. Brazilian illegitimate President Michel Temer said Manaus-AM was merely “an accident“, AM Governor said “There were no saints!“, Temer’s Government National Secretary of Youth said “There aren’t enough of them. There should be a massacre a week!“, to the point where a Congressman tweeted something like “Manaus 50 vs 30 Boa Vista! Let’s go, Bangu (Rio de Janeiro Prison)! You can do better!!“;… and a lot of others not worth mentioning.

The whole point is: the world is walking on a path based on the post-truth era of resentment, intolerance, fear, hate, and anger. The moral compass mostly based on those emotions is what drove us to Brexit, to Colombia voting NO, to Trump election, the recent Brazilian Coup d’Etat, and it is also what drives lone wolves to such mad shootings like Orlando Nightclub; Charleston’s Church; Campinas-SP, Brazil; and so on…

Like actress Maryl Streep said at her 2017 Golden Globe Awards’ speech:

“And this instinct to humiliate, when it’s modeled by someone in the public platform, by someone powerful, it filters down into everybody’s life, because it kind of gives permission for other people to do the same thing. Disrespect invites disrespect. Violence incites violence. When the powerful use their position to bully others, we all lose.“

All that hate that Campinas’s shooter wrote on his suicidal note is exactly the same thing we see reactionary conservative people writing every day on social media.

So I can say this moral compass’ north points to all kinds of violence, more and more. If we follow this path along with austerity, growing inequality, reducing Welfare State and Labor Rights, fighting the refugees, a system of mass incarceration, repealing Obamacare, ending Social Public Policies and supporting a narrative which appeals to emotion and personal belief (moral compass), we’ll be feeding an exclusivist and extractive society. Certainly a dark future! More inequality = More incarceration!

The world already has a good north we can use for our individual moral compass, it is one on which all the human kind agreed upon, the Universal Declaration of Human Rights or several nation’s fundamental rights and guarantees written down in almost all Western Civilization’s Constitutions.

Therefore, we must set up a new kind of engine not fuelled by fear and hate of imposing our own individual moral standards over other people or the society, but fuelled by embracing solidarity and genuine empathy. An engine to move the world towards peace, more tolerance, freedom, dignity, inclusion, equality, prosperity and the pursue of happiness.

Maybe we were supposed to be living in the “Common Man” era if Henry A. Wallace had not suffered a coup inside the Democratic Party, like Bernie Sanders, and had become once again Franklyn D. Roosevelt’s running mate instead of Truman. According to Oliver Stone’s Untold History of the United States, the atomic bombs might never have been dropped, and the Civil Rights Movement might never have been needed to exist.

But people like Henry A. Wallace, Bernie Sanders, and leaders like them are often pejoratively called naive. Actually, it’s the opposite, they are the ones that have enough courage to stand up for humane causes, for peace, not war, for equality and against the financial power.

If Eduardo Cunha* was suspended from his Office by the Supreme Court (STF), Renan Calheiros** shouldn’t be also?

* Eduardo Cunha was a Deputy and President (or Chief Speaker) of the Chamber of Deputies in Brazil (our House of Representatives).** Renan Calheiros is a Senator and President of the Senate.

According to our Constitution and laws, should they have been suspended after all?

I don’t know exactly. I had a lot of work gathering all references and information to make this comparison… So, let’s see. First, the order of the facts, then I’ll try to see what are the Constitution and the Law rules in each case.

CUNHA’S CASE

2015, March 9th– the first inquiry is filed against Eduardo Cunha at the Supreme Court, (Inquiry no. 3983).

2015, August 20th– the Prosecutor General of the Republic – PGR (similar to United States Attorney General) files a complaint against Eduardo Cunha at the Supreme Court in the Inquiry no. 3983.

2015, October 13th– PSOL and REDE political parties, filed a petition at the Ethics Commission of the Chamber of Deputiesto oustDeputy Eduardo Cunha from Office. The main reason (among countless) was that Cunha lied to Congress about the existence of his accounts in Switzerland Banks.

2015, October 15th– the second inquiry is filed against Eduardo Cunha (Inquiry 4146), which was filed by the Prosecutor General of the Republic, Rodrigo Janot, based on evidence that Eduardo Cunha did had accounts inSwitzerland Banks. On the same day, it was filed a new impeachment petition against President Dilma Rousseff written by the lawyers Hélio Bicudo, Miguel Reale Jr. and Janaina Paschoal, a review of their original petition filedin September 2015.

After that, in the same day, December 2nd, 2015, Eduardo Cunha (Chief Speaker) accepts the request for President Dilma Rousseff’s impeachment of a petition filed one month and a half earlier (to my point of view an obviousbackfire).

2015, December 16th– the PGR files a Precautionary Action, or Injunction, (AC no. 4070) at the Supreme Court, requested by PSOL and REDE parties, which calls for the immediate suspension of Eduardo Cunha’s mandate as a representative and consequently his suspension as Chief Speaker of the Chamber of Deputies. Briefly, the urgency requestwas based on11 motives, almost all involving Eduardo Cunha’s maneuvers to disrupt all processes he was the defendant, the withdrawal process at the Ethics Committee and also the STF’s criminal Inquiries.

It is worth mentioning that Eduardo Cunha is known to be the “King of Maneuver” in Congress, by the use of any subterfuge to reverse decisions that are against his own interests, like the case of votes on the Criminal Liability Age Reduction, and the Political Campaign Financing by Corporations (mini Political Reform, which was already ruled unconstitutional by the STF) and even meddling inthe affairs of the Ethics Committee’s Board.

2016, March 3rd– the Supreme Court accepted the complaint based on the Inquiry No. 3983 and Eduardo Cunha becomes a defendant.

2016, March 7th– the PGR files a complaint against Eduardo Cunha based on the Inquiry No. 4146 at the Supreme Court.

2016,May 3rd – REDE Party, represented by none other thanDaniel Sarmento Professor of Constitutional Law at UERJ, files a Claim of Non-Compliance with a Fundamental Precept (ADPF No. 402). Mainly based on Article 86, paragraph first, Item I, of the Constitution; the action asks a Supreme Court ruling that a person who is a defendant in a criminal prosecution cannot hold position in any Office of the Presidency of the Republic’s succession line, which would be Presidency of the Chamber of Deputies, Presidency of the Senate and Presidency of the Supreme Court, in this order. In my view, this ADPF has two main objectives: one, make such obstacle opposed to any citizen (erga omnes and binding effect); and two, legal maneuver to make a new request for Eduardo Cunha’s immediate suspension as Chief Speaker (but not from his mandate as representative), since Justice Teori Zavascki had not yet decided about the Injunction filed on December 16th, 2015.

2016, May 5th– almost 6 months later, the STF’s Full Court rules, in the AC 4070 injunction, to finally suspend Eduardo Cunhafrom his mandate as well as Chief Speaker. Since theADPF 402, in which Justice Marco Aurélio was the rapporteur, wasscheduledto this day, Justice Teori felt compelled tospeed up his decisionin the AC 4070 case where he was the rapporteur. So he scheduled the AC 4070 for this day because the same kind of decision could be ruled before in a newer process (ADPF 402).

2016, June 22nd– The Supreme Court accepted the complaint based on the Inquiry No. 4146 and Eduardo Cunha turns defendant again.

2016, September 13th– the Chamber of Deputiesdecides do expelEduardo Cunha from Office.

A Precautionary Action, or Preliminary Injunction, has at least two essential requirements which are theplausibility of the invoked rightanddanger in delay(Civil Procedure Code – CPC/73, Art. 273, item IorCPC/2015, Art. 300+). The preliminary injunctionrule is an exception to the constitutional due process of law’s right of defense principle. It’s a pre-trial motion so that the judge can issue an emergency measure’s order without hearing the other party (no possibility for the defendant’s right of defense). This is why the Preliminary Injunction order must be grounded on those two requirements above.

Theplausibility of the invoked right (or “likelihood of success on the merit of the case”) means that, in a summary and preliminary analysis, all elements, evidences and other clues points to a possibility that the right claimed exists in practice, that the applicant’s claim have strong support and great likelihood of being granted at the end of the process.

Thedanger in delay means that the right the applicant seek protection can perish or there’s a great risk of suffering serious and irreparable damage if an urgent measure is not taken to prevent it from happening. Therefore the preliminary injunctions can beseen as a preventive measure, a protective order. Prevents the right claimed from being harmed or lost since the action would lose its object and no justice could be achieved if there’s no right to be protected.

In Eduardo Cunha’s case, theplausibility of the invoked right– given the overwhelming evidence and charges against him both in the judicial and the administrative (withdrawal process) spheres – have at least 2 out of 5 foreseeable reasonings from Constitution’s Article 15 possibilities: a future criminal conviction or administrative misconduct – the latter which was eventually confirmed by him being withdrawn from his mandate as Representative.

Well, thedanger in delay reasoning is even easierto understand, I think. The existence of an Inquiry in progress and then a second Inquiry, No 4146 of October, starting almost at the same time of the Withdrawal Process in the House of Representatives. The consequence of any of those processes, if confirmed, would be the loss of the mandate as Representative. If this wasn’t enough, Eduardo Cunha was using the power of his Office as Chief of the House of Representatives to protect himself, disturbing processes and obstructing justice – How often did he interfere in the formation and progress ofthe Ethics Committee of the House of Representatives? – That is, if this precautionary urgency requirement had been complied within a reasonable time (for me, the urgency is something that is decided in one week maximum, not 6 months), perhaps Cunha had been ousted more quickly by the Ethics Committee, which would save us from his maneuvers and wrongdoings in the Congress. It is possible that neither the coup d’etat (impeachment) had gone through ridding us from this institutional chaos Brazil is living in. Therefore, it would be more reasonable if Eduardo Cunha had been ousted by order of the ADPF 402’s preliminary injunction, and not by the almost 6 months late AC 4070’s preliminary injunction.

Could Deputy Eduardo Cunha have been removed by Justice Teori at the request of the AC No. 4070 (if it was granted within a reasonable time – one week maximum)?

Some say that the answer should beNO, like Prof.Gamil El Föppel Hireche from UFPE. His explanation is quite interesting – I recommendhis article. I will try to summarize it in two main arguments, one of constitutional order and other about criminal procedure.

Professor Hireche states that the appropriate protective mechanism to ensure the due course of the criminal proceedings would be pretrial detention, which is an exceptional measure. However, Constitution’s Article 53, paragraph second states that Congress members cannot be arrested during the mandate, except if found in the act of committing a non-bailable crime; or, of course, after the final criminal sentence (Article 55, item VI) – almost repeating the text of the Article 5th, item LVII’s presumption of innocence principle. Therefore, we can define it as some kind of “parliamentary immunity”.

This “immunity” brings us to his second argument. Since congressmen is exempted from pretrial detention as a precautionary measure while in office, “a replacement measure could not be adopted in exchange” like the suspension of the civil service exercise provided by thearticle 319, item VI, of the Criminal Procedure Code – CPP (again, I recommend reading Prof. Hireche’s article linked above).

I understand Prof. Hireche’s arguments, but I tend to disagree. I’m more aligned to Prof. Lenio Streck’s reasonings, which seems more consistent with the integrity of the law to me. Briefly, the“immunity” is a prerogative granted to the Office position to protect the Parliament institution, not the individual. So, if a person uses those prerogatives’ powers for its own benefit precisely to obstruct the due process in which he is a defendant, the preliminary injunction (Article 319, item VI) is needed and justified as a preventive procedural measure, and not as a punitive measure. So it’s aimed to protect both the Representative Office and the due process of law from wrongdoings. Here is an excerpt of his argument:

“Note that the lack of decorum by prerogatives abuse is a hypothesis of mandate loss provided by the Constitution, Article 55, item II and paragraphs 1º and 2º. And who decrees the mandate loss is the House of Representatives. But, why does the Supreme Court, who must judge a deputy for any crime committed (article 53, paragraph 1º), could not order a precautionary measure to ensure due process in the case where the parliamentary prerogatives abuse involves itself in the obstruction of his own inquiry and judgment process? Precautionary measure is not the legal protection, but the process guarantee. The precautionary withdrawal is not a punitive measure, is not even subject the same way as the punishments system. It is a procedural measure to ensure the due process and not to be confused with the merits.”

So the answer to the above question isYES.

Eduardo Cunha could have been removed immediately from Office (and as Chief Speaker) based on the criteria of the preliminary injunction (Precautionary Action or Measure) presented above (Article 273, item I, of the Code of Civil Procedure of 73 combined with Article 319, VI, of the Criminal Procedure Code).

Since Justice Teori’s decision was wrong, because it was too late, could Eduardo Cunha have been ousted by Justice Marco Aurelio’s decision at the ADPF 402’s preliminary injunction request? (if, of course, granted in a reasonable time – let’s say, a week)

This is a tricky answer, some say yes, others no…

The ADPF 402 is mainly based on Constitution’s article 86, essentially the part that deals with the suspension of the President regarding cases of common crime, but for a maximum period of 180 days.

Thisarticlefrom Prof. Pierpaolo Bottini, with which I agree, has adeeper explanation of the ADPF 402’s merits.

First, we must drawthe difference between: common crime committed before or in the course of the mandate.Article 86, paragraph 4, states that any common crime criminal lawsuit is suspended through the mandate’s term for a crime committed before it. That is, a citizen can exercise the Presidency of the Republic even if he is a defendant in a criminal lawsuit for crimes committed before his Inauguration. After the Inauguration the existing process, and all its deadlines, is suspended until the end of the mandate.

In the case of crimes committed during the term (Article 86’s head), there is another restriction, it cannot be any common crime, but only those “related to the performance of his functions“as president. Beyond that, the criminal charge must be accepted by two-thirds of the Chamber of Deputies so that, only then, the complaint can be filed and go to trial at the Supreme Court. In this case, the individual is suspended from Office as President for up to 180 days (Article 86, Paragraph 2). After the 180 days period, he/she can come back to Office even if the trial has not ended. That is, if the STF cannot end the trial in 180 days, the individual-defendant will regularly exercise the Presidency Office.

What does article 86 of the Constitution tells us then? That there is only one possibility for an individual accused of a common crime to be suspended from Office as President: as long as he’s a defendant in a criminal lawsuit related to the exercise of the President function and up to 180 days.

Well, since ADPF 402 is intended to extend this rule to other positions in the presidential line of succession (the Chief Speaker, Senate and Supreme Court’s Presidency), then the criteria should be at least the same as those applied to the Presidency Office, right?

So, the answer to the above question is: I have my doubts, but I would sayNO.

In Cunha’s Case, I believe that even if the danger in delay element of the precautionary measure were legitimate, it would lack substance regarding the plausibility of the invoked right element, as I tried to explain above. After all, I might be wrong, but the ADPF 402 seemed to me a subterfuge to circumvent Justice Teori Zavascki’s inertia at the AC 4070 and ensure the same end through other means.

RENAN’S CASE

2007, August 6th– an inquiry is filed at the Supreme Court against Renan Calheiros, Inquiry No. 2593.

2013, January 28th– a complaint is filed by the PGR against Renan Calheiros on the Inquiry No. 2593.

2016, November 3rd– there was a majority of six votes, out of eleven possible, in the Full Court of the STF in favor of ADPF 402, but the process was suspended because Justice Toffoli requested the case docket for examination.

2016, December 1st – almost 4 years later the PGR’s complaint is accepted by the Supreme Court and Renan Calheiros finally becomes a defendant.

2016, December 5th–Prof. Daniel Sarmento, representing REDE party, files thepetition No. 69829in the ADPF 402’s process, which asks for the immediate suspension of Senator Renan Calheiros as Senate President at a preliminary injunction. In addition to the ADPF 402’s main merit its initial petition request also asked for Eduardo Cunha’s immediate removal as Chief Speaker, since he was a defendant and Lower House Chief Speaker at that time: this request had lost its object due to the STF’s decision in the AC 4070 process. Therefore, the Petition No. 69829 claims mainly two arguments: one, that, even though the trial is not finished yet, the majority of six justices had already been achieved in favor of the case merit; two, the subsequent event (the above decision of December 1st, 2016) took another congressman, Renan Calheiros, to the same position that Eduardo Cunha displayed. Thus, this new petition reiterates the initial ADPF 402’s preliminary injunction request replacing Eduardo Cunha for Renan Calheiros to order his immediate suspension from Senate Presidency.

2016, the same day:(this is what we can call urgent!)Justice Marco Aurélio accepts the request anddecided monocratically(i.e. individual decision) that Renan Calheiros should be suspended fromOffice as Senate President. This order was ignored by the Senate’s Board in the aftermath, which would be a crime of disobedience(article 330 of the Criminal Law Code), but this is not important for this article’s debate.

2016, December 7th– Justice Marco Aurélio’s monocratic decision goes to the STF’s Full Court deliberation and all other justices decidedto partially endorse it, i.e., Senator Renan Calheiros can remain as President of the Senate, but no longer in the Presidency succession line.

Senator Renan Calheiros could have been removed from the Senate Presidency by Justice Marco Aurélio in the ADPF 402’s preliminary injunction?

NO. For several reasons, the main one is the ADPF 402’s initial petition grounds weakness to justify granting of the main merit request (explanation above), the absence of the injunctive relief’s precautionary character (after all, it is based on an Inquiry from more than 9 years ago!) and, mainly, because I guess the principle of presumption of innocence(Article5th, Item LVII of the Constitution) still prevails in our legal system. I am not even addressing the matter that it was an order given by a single Justice.

Could the Supreme Court have kept Renan Calheiros’s Office as Senate President, but ousted him from the Presidency succession line?

NO. As statedhereby Prof.Renato Ribeiro de Almeida, the Lower House, the Senate and the Supreme Court’s Presidents are not in the succession line to the Presidency of theRepublic, only the vice-president is. According to the Constitution, those positions will replace the President, not succeed him. This replacement is a precarious succession, only temporary. Moreover, the Constitution does not provide such severe criteria for the President Office itself. So, how can be made such obstacle to other positions in the succession (or replacement) line by an ampliative interpretation of a restrictive constitutional rule? Isn’t it a disproportionate overuse of analogy? It does not sound reasonable to me.

For further reading on the Renan Calheiros case I recommend thisarticleshowing several positions, alsothis other onefrom Prof. Lenio Streck.

Answering this post’s title main question: Eduardo Cunha and Renan Calheiros’ casesare not equal.

The former should have been suspended immediately from Office as Deputy because his case met all the precautionary measure’s requirements needed by the civil and criminal procedures.

The latter couldn’t, because the suspension request was based on an action still awaiting for final judgment (ADPF 402), which is based on weak grounds using an ampliative interpretation of a restrictive constitutional rule, and the case did not meet the requirements for the granting of an injunctive relief.

Thus, just like Prof. Bottini said, I alsothink REDE party’s concern addressed by the ADPF 402 is admirable. But I must say that this is an opinion using a political lens to make an analysis about this situation.

If analyzing this using a legal lens, I must say I cherish for the stability and respect of the political institutions, especially our Constitution. Our Constitution’s coherence and integrity depend on the respect given to its limits settings. Therefore, I am against the amendments sought by ADPF 402 using the Judiciary way, just because it compromises several Fundamental Rights and Guarantees’ Principles with no regard to the Democratic way.

Chapecoense soccer team and some journalists died in a terrible airplane crash going to Colombia; our Senate approved “The End of the World” Constitutional Amendment, Congressmen were having a cocktail while people protesting against it were being attacked outside by the Riot Police with its cavalry, lots of tear gas and rubber bullets; and our Supreme Court‘s First Chamber kind of ruled that abortion should not be regarded as a crime if done during the first three months pregnancy.

The Supreme Court’s decision is a solace among such bad news, is a relief telling us we can still believe in humanity… but…

Even though we have an immediate comfort in the progress this decision represents, we should be cautious, take a step back, think about it and question ourselves instead of taking the impulse to celebrate in social medias.

I support abortion decriminalization, but the Supreme Court’s attitude should be criticized (not condemned).

Supreme Court’s (STF) activism should be, indeed, heavily criticized.

The debate I intend to bring to the surface is not about matter, but form.

This STF’s abortion case was about a habeas corpus questioning criminal procedures and asking for the immediate release of the defendants who were illegally in jail. It was being judged by STF’s First Chamber, not the full court.

Therefore, even though the case’s subject was questioning the form, the criminal procedure, Justice Luis Roberto Barroso took the opportunity to speak his mind in his vote and raise the hypothesis – with excellent arguments I must say – that the abortion-crime is unconstitutional and, since our Criminal Law Code (1940) is prior to the Constitution (1988) it should not have been received by our legal system.

I have at least five considerations to make:

1 – since abortion is a delicate subject and of great importance, it should not take place in one of STF’s chambers, but in the full court, which is the appropriate arena for the democratic debate, including the civil society, to take place;

2 – even though I’m fond of this non-reception thesis, the abortion-crime is widely applied both by the police force and first instance courts all over Brazil. Which means that our first layer of Constitutionality Control (diffuse control) understands this crime as valid and in effect. An understanding that could be reverted using a proper action (Judicial Review or Constitutionality Control) to this end, the “Allegation of Disobedience of Fundamental Precept“;

3 – but, the ideal way to change such a complex public policy should be to abide to the Constitutional order (article 2º): Legislative, Executive and Judiciary – or the way I said in item 2, above;

4 – if this precedent is going to be adopted by the STF this time forward in all individual appeals that reach the court, how are going to be the Legislative and Executive branches competencies about this subject’s complexity? In this way, we might be entering in a paradoxical state of affairs since neither the Legislative nor the Executive has proper public policies suited to abortion as a matter of public health. There’s no educational, preventive and contraceptive program, psychological support and counseling for pregnant women and/or a Public Health System program designed to this end. Can the STF dictate the State’s Public Policies by its institutional behavior ruling individual cases? Is the Judiciary who decides it or the democratically elected powers?

When the Supreme Court’s activism is eroding important Fundamental Rights and Guarantees it’s hard to celebrate such a good and relevant decision.

Of course, we can celebrate it, but with caution and reservations.

Next, in the following day, Justice Barroso gave an interview explaining his vote.

I guess I’m not able to say if what he is doing is right or wrong yet… I still have a long study road ahead of me to settle a position about such complex subjects. But I can say that Justice Barroso’s protagonism makes sense.

Prof. Carlos Alexandre de Azevedo Campos is a pupil from UERJ’s Law School, where he now lectures. His Ph.D. thesis advisor was Prof. Daniel Sarmento, also a lecturer at UERJ Law School and former pupil of Justice Barroso at UERJ Law School, before he went to the Supreme Court.

Being very briefly, they argue that one of the virtues of the Unconstitutional State of Affairs is the STF’s role before both Legislative and Executive branches’s institutional blockage in insuring the Fundamental Rights and Guarantees. When the Supreme Court declares the Unconstitutional State of Affairs of a case it assumes the role in provoking and fostering a broad debate among various institutional and social agents, like organs, institutions and federative entities that should be held responsible for addressing to that deficient public police in its whole complexity. It’s kind of a supervisory jurisdiction whose goal is to ensure the, until then, non-existent or deficient Fundamental Rights and Guarantees.

So, nothing more reasonable than to expect Justice Barroso’s initiative to “provoke” the society to act. Therefore one of the authorities from Constitution’s Article 103 can propose a proper Judicial Review on this subject so that the STF could, thus, make a democratic decision after debating along with the civil society in the due process of law.

Can the STF assume such a Role, or in doing so will we be living under the Judiciary Rule?

Earlier this year I read a tweet or a facebook post saying something like this: “whenever a conservative or reactionary person accuses an opponent of doing something bad or absurd, this would be something they themselves would be willing to do in the first place“. To summarize, they accuse others of doing what they are willing or wanting to do.

Why am I saying that?

Because I started to pay attention to this mindset and then started to notice another curious trend, the “nationalist” mindset. I realized that those who call themselves “nationalists” are not nationalists at all.

I might be wrong but I think we could say that Brazilian “nationalists” are much alike the Alt-right here in USA, and I guess what I’ll try to describe could fit the same kind of person of most countries. Of course, not all of them agree or are comfortable with the whole kind of “Alt-right agenda”, however we could say that their mindset follows the same pattern.

All over Brazil protesters went to the streets wearing green or the yellow shirt of the national soccer team asking for the impeachment of our former president, Dilma Rousseff. They used to call themselves the true Brazilian nationalists – that’s why most of them wore yellow, green and were waving Brazilian flags.

The sovereignty of 54 million votes disrespected and tossed in the trash like they worth nothing.

Most of them agree or are comfortable, for example, with the Proposal of Constitutional Amendment (PEC 241) currently in debate in our Congress. If this amendment goes through it will freeze public spending, for example, on health, education, and the minimum wage for the next 20 years. The PEC 241 has been called “The End of the World Amendment” since it will jeopardize several Fundamental Rights and Guarantees, compromise the welfare state and Brazilian people’s citizenship.

From this mindset standard behavior, I can say we could predict which people from our social medias bubble who would support the survey showing that more than 50% of Brazilians think that “a good criminal is a dead criminal“, as soon as it came out (Brazil has one of the world’s most deadly police force).

I’m not afraid to say it because they are the same people who say “Human Rights for the right humans“. They seem to hold no esteem for the dignity of the human person upon all the Human Rights are based. For them the torture and violence perpetrated by the State are means justified by their sick ends.

They were the same kind of people that got furious when Brazilian Congress approved a constitutional amendment granting the domestic workers (mostly house maids) the same labor rights as everyone else. It seems that they don’t think house maids are entitled to the social values of labor. It’s like house maids could not be considered as workers like everyone else, or they are some kind of second class workers not worthy of Labor Fundamental Rights and Guarantees.

Last but not least, their main political focus seems to be the eradication of Workers Party or anything/anyone that they think could be related to socialism, communism, leftism, bolivarianism… you name it!

They prefer a authoritarian military dictatorship than live in a free society and politically plural. Some of them usually say: “Go to Cuba If you’re not happy with our country!”. It’s like the country is not owned by its people, but only by a very distinctive group that share their extreme conservative viewpoints.

For the Merriam-Webster a nationalist is a person who advocates “national independence or strong national government, an advocate of or believer in nationalism“. And defines nationalism as “loyalty and devotion to a nation“.

This is what we could expect from a person who calls himself a “nationalist“, right?

So, if the Constitution is a document which defines our country and is the “contract” that settles our social pact as a nation, we could say that a nationalist is someone that vigorously defends the Constitution, right?

Let’s see what our Constitution says:

Article 1. The Federative Republic of Brazil, formed by the indissoluble union of the states and municipalities and of the federal district, is a legal democratic state and is founded on:

I – sovereignty;II – citizenship;III – the dignity of the human person;IV – the social values of labour and of the free enterprise;V – political pluralism.

Sole paragraph. All power emanates from the people, who exercise it by means of elected representatives or directly, as provided by this constitution.

Ok, its enough to see that Brazilian “nationalists” got disaproved on the first artcile of our Constitution, and there are more 249 articles still to go…

How can someone call himself a nationalist if he/she doesn’t respect the foundations of their nation?

It is common to say that the Left, or some abstract entity, sometimes with Bolivarianism alias, ruled the country for thirteen years.

Brazil’s flag did not become red.

No company was nationalized. There was not a single democracy deviation through popular hand – not even a plebiscite in all this time. No changeshave even been proposed to increaseits own mandates length or reducing the others. No instrument of censorship was created, not even against to actively partisan media channels. There was no political police – and if there were, certainly would not have been to support the government. Even the sacrosanct financial system remuneration was kept unscathed – or even in uprise. No torturer from dictatorship years was, finally, arrested.

The so-called Bolivarianism has gone through four elections.

In about six months of cap and the interim government, the Constitution has alreadyaged twenty years. Thesocial welfare state is being disfigured by a budget ceiling that will put on hold the future of a whole generation; the education ideologically reformed by a provisory act; the oldest instruments of labor protection legislation areabout to become history. At the foreign policy, it is making a bootleg turn on a transatlantic.

For these changes, which represent a significant reversal, of course, no election was needed.

That alone would be enough for the concept of Democratic normality get seriously shaken. After all, if such a huge change without elections is possible, so what for would they be needed?

Unfortunately, the Fall of our democracy does not stop there.

We can sense it in major decisions and also in small actions.

A bill restricting content that a teacher can give in the classroom; a theatrical play interrupted by the police, for allegedly being disrespectful to the country; the normality in which acts equivalent to torture are admitted as legitimateby authorities empowered to grant rights. The labor right to strike dismemberment being paired with the incessant criminalizationof social movements.

The superpower of reasonable care is becoming an alibi for the suppression of liberties and the petrified clause’s solidity dismantles in the air with principles being replaced by policies subscribed by the highest Court of justice.

The mass incarceration that has made our prison population double in a decade seems to have not been enough to hold such wrath – despite being premium fuel for the growth of crime itself.

Lulled by the media success, the Federal Prosecutor’s Office presented a criminal change package bill that is a real Code of Law for the accusation – proposal of great incarcerating potential and for its own political power, amputating the judiciary and crushing the defense. Several North American procedural mechanisms are imported with great enthusiasm, without the warning that their incarceration resulted in 2.3 million prisoners, mostly black, and a huge prison system investment which is not even mentioned here.

How to reconcile 10 incarcerating measures with twenty years of public spending ceiling, is a silenced question.

Yes, it is true, we already lived worst crisis than that, whether in the economy, whether in politics.

I was born in the dictatorship period, between the coup of 64 and the AI-5 (Institutional Act 5 of 1968). When I turned eighteen, I was in the streets fighting forfree direct elections, which were forbidden for us. We had the big stick of the State over our heads – Brasília besieged by war tanks, trade unionists arrested and a Military General in power.

There was a breath of hopein the air, though. The afternoonwas going down like an overpass, but the future was opening like a truck loaded with good prospects. Reclaim democracy, build a fraternal society, reduce the enormous inequality that kept millions in misery.

Today my daughter is eighteen and to know that tomorrow will be another day only brings us even more threatening images.

Marcelo Semer is a São Paulo State’s Judge and a member of Judges for Democracy Association. Along with Rubens Casara, Márcio Sotelo Felippe, Patrick Mariano and Giane Alvares Ambrose participates in the column Contra Correntes, which posts every Saturday for Justificando website.

* Both words Fall and Autumn mean a season of the year. I chose to use Fall instead of Autumn because it could give this article’s title a second meaning the original portuguese article doesn’t have, which is the sense of falling, debacle, tumble, crumble… And I ask forgviness to this article’s autor for this poetic license in my translation. I did so because I believe it fits perfectly to its content.

It’s a curious thing to translate Rule of Law to portuguese. Even in english this concept might have multiple meanings. It is so important that Jeremy Waldron, New York University Law School Professor, wrote an essay where he tries to draw its concept: “The Concept and the Rule of Law” – I’ll come back to it later.

“Rule of Law” is usually translated to portuguese as “State of Law” (Estado de Direito), sometimes as “Law’s Empire” (Império da Lei), but it could be translated as “Rule of Law” literally (Régua da Lei) – in this particular case the word “Rule” meaning the tool “ruler”, not “Rule” as a meaning of regulation, law, statute and so on…

A Ruler (régua) is a tool common to all of us. No matter what each of us suppose something might measure, each person can make his own guess about the size of a given object and different people can make different guesses until they use a tool, Ruler, to make sure the real object’s size/length.

So, a Ruler is an object that everyone can rely on. No matter what is my guess, your guess, that other person guess and all the multiple people’s guesses, the true size/length of something is what everyone can check using this tool, which is external and common to all of us.

This is what “Rule of Law” should mean, it settles the legal system where the Law is its tool and the language its measure. Of course, the Rule of Law is much more complex than a simple metric ruler, we cannot just compare its measure with whatever we want and have always one and only rate possible.

Even though language can be most of the time polysemic – and that’s why we need and have several books about legal reasoning, theory of law, philosophy of law, etc. -, it has semantic limits, boundaries that once it’s crossed the language stop making any sense. The point is, the language’s semantics limits are people’s first (and last) resort of certainty about the Rule of Law and the Law itself. Language’s semantics boundaries are the ultimate common terminology everybody can count.

Jeremy Waldron says, besides several other things, that the Rule of Law should emphasize the value of settled, determinate rules and the predictability that they make possible.

Further on he cites Ronald Dworkin saying that Law is a system in a sense that has to do with logic, coherence, and integrity.

“The Rule of Law is a multi-faceted ideal, but most conceptions give central place to a requirement that people in positions of authority should exercise their power within a constraining framework of public norms rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.“

If you cannot count on language semantics, how can you trust the legal system which is based on it as its fundamental source?

According to the english version of the Brazilian Constitution found at Brazilian Supreme Court’s website, its item LVII of article 5th says the following:

“no one shall be considered guilty before the issuing of a final and unappealable penal sentence“

I already talked about this subject here, but in that ocasion the matter was not object of constitutional control, it was only regarding that particular case.

Two Constitutional control actions were proposed before the Supreme Court to settle the matter about this subject, ADC 43 and 44. Despite the undoubtedly clear written rule “unappealable penal sentence“, on October 5th, which was our Constitution’s 28th anniversary, the Supreme Court ruled that a person can be considered guilty and be convicted even though he could still appeal to the Superior or Supreme Courts.

It’s always good to remember that that provision is a Constitutional Unamendable Clause, so, not even the Brazilian Legislative branch could abolish or undermine such fundamental right.

Perhaps the difficulty to translate Rule of Law to portuguese might be one of the problems on fixing its proper meaning among our people’s culture. Brazilians never had more than 30 years of democratic stability. I think they never thought on Law (Rule of Law) as the origin and constraint to the use of power by authorities in a Constitutional Democracy.

Now it doesn’t matter anymore since we can say that there’s no such thing as Rule of Law in Brazil, but only the Rule of Judiciary.